Should Divorce Records Be Public or Private?

divorce2.jpgA USA Today story raises the issue about whether divorce records should be public or private. The article has a good discussion of the law of divorce record confidentiality, and it has examples of several cases where reporters obtained divorce records of celebrities and politicians in order to glean juicy bits of gossip. One of the most interesting cases involves Republican U.S. Senate candidate Jack Ryan, who ran in Illinois in 2004:

Republican contender Jack Ryan quit the race after news organizations persuaded a Los Angeles judge, over objections by Ryan and his ex-wife, to unseal their 2000 child-custody battle. Jeri Ryan, an actress in TV’s Boston Public and Star Trek: Voyager, had alleged that her husband dragged her to “sex clubs” and asked her to have sex with him in front of strangers. She said she refused. . . .

I’m quoted in the story as siding with keeping divorce records confidential:

Daniel Solove, a professor and privacy advocate at George Washington University Law School, says it was “inappropriate” for the court to release the Ryan allegations. “It’s a private matter, essentially a dispute between this couple. We don’t say, ‘You’re running for politics and your priest should have to divulge confession records.’ ”

But Donald Schiller, a Chicago attorney, says, “If you’re putting your character on the line for voters to see, maybe there should be no secrets. But that shouldn’t apply to the average man or woman.”

Although my quote came out fine, I wouldn’t describe myself as a “privacy advocate.” Both Schiller and I agree that divorce records should be private, but Schiller believes that they shouldn’t be private for politicians. I believe they should be presumed to be private unless there’s a very compelling reason to the contrary. Who’s right, Schiller or myself? What about the divorce records of celebrities? Should they be public because celebrities are public figures? And perhaps, one could argue, divorce records should be public for everybody, even if they’re not famous. After all, people getting a divorce are availing themselves of the courts, and courts are public institutions.

This is a very interesting and contentious issue. States are all over the place when it comes to policies regarding whether divorce records remain sealed or not. The article continues:

Solove says media claims of constitutional rights to court records are overblown. Divorce papers are “fun and interesting, and people are curious,” Solove says. “But why should people be forced to give the government personal information, and then the press can use it for entertainment value?”

The media often spends far too much time fighting for information about celebrities or tawdry bits of gossip about politicians and not enough time fighting for information about what the government is up to. People make all sorts of allegations in divorce papers, and they lay bare very intimate details about their lives (and the lives of their families and children too). With regard to the Ryan case, the records contributed little to the issues involved in the campaign; indeed, it detracted from them. Both Jack and Jeri Ryan wanted the records sealed; they had a young child whom they didn’t want to learn about the details of their sex lives. I don’t think that this contributed to the public discourse, and people shouldn’t have to have their personal lives exposed for all to see in order to get a divorce.

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5 Responses

  1. David Kasper says:

    I would have to agree that Politician’s Divorce Records should be public. It is unfortunate the media makes them into out of control side shows, but I believe my elected officials should be a pro-family person. Divorce is not pro-family, most of the time it is pro-self.

    I understand your position though. In a perfect world, where politicians are not corrupt, I would agree with your position.

  2. Rob Hyndman says:

    “If you’re putting your character on the line for voters to see, maybe there should be no secrets”.

    I don’t see this as being helpful.

    1. Who’s to say whether any particular divorce has anything to do with character?

    2. Who’s to say whether any particular politician’s election has anything to do with whatever it is about character that emerges in a divorce?

    3. Who’s to say whether any particular allegation has anything to do with the truth?

    4. Why should politicians uniquely (or anyone, for that matter) be subject to the extortionate allegations that can be threatened in the course of a divorce? Why would we make allegations made by the one class of persons we know to be single-mindedly set upon personal destruction – spouses in the course of a breakdown of their relationship – fodder for anyone else’s consumption? This ain’t about entertainment folks. Given that backdrop, shouldn’t it be up to those with an appetite for this to present a compelling reason for the disclosure?

    And etc. virtually ad infinitum.

  3. Focusing only on politicians and celbrities begs the fundamental question–whether divorce records should ordinarily be open to the public.

    In my state, they are. And that’s potentially a huge problem for common folk. Sooner rather than later anyone who wants to peek will be able to do so through an electronic filing portal like Pacer.

    By rule even in non-contested matters, the parties are required to file financial, income and expenses statements and many trial courts will not agree to confidentiality orders. It’s an indentity theft’s dream. And a business competitor’s dream too.

    I understand in California the problem has been addressed in part by allowing couples to rent a judge. Needless to say, that’s not an option open to most.

    The general public has no dog in the hunt in the ordinary divorce proceeding and no legitimate need to know. So the general rule as Professor Solove suggests should be a presumption against disclosure.

  4. KipEsquire says:

    In New York, divorces are still in the form of civil lawsuits filed in the court of general jurisdiction (Supreme Court), not Family Court. The public, in my opinion, always has a right to attend, or obtain records from, plain vanilla civil and criminal courts.

    So I suppose the first step to your point of view would be to remove divorce proceedings from ordinary civil courts and remand them to Family Court, where proceedings are confidential, rather than to carve out an exception in Supreme Court.

    As for your point of view generally, I concur with Schiller. You want to live a private life? Fine, then stay a private citizen.

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